California Assembly Bill 1159 (AB 1159) Targets Immigration Attorneys

When it comes to controversial legislation, California sometimes leads the nation.  Assembly Bill 1159 (AB 1159), recently introduced in February 2013, has raised the ire of many immigration attorneys practicing nationwide.  The bill, initially introduced earlier this year, contained language on Education but was (entirely) amended instead in July 2013 to regulate immigration services in the State of California.  You can read the current version of the bill, as of July 10, 2013 here, and the legislative history here.

While controversial bills affecting immigration attorneys aren’t entirely new (read about a past Alabama incident here), it is the way in which AB 1159 (in its current incarnation) has evolved that raises many questions.

Proposed Language in AB 1159

Technically, the amended language of the bill applies to immigration attorneys providing (future) services related to the Immigration Reform Act (aka “Border Security, Economic Opportunity, Immigration Modernization Act, S. 744 2013”).  In essence though, any licensed attorney physically practicing in the State of California would be subject to these new amendments merely because of how comprehensive the Immigration Reform Act would be.  [The issue of whether or not S.744 is passed by the House of Representatives, while relevant, does not diminish the questions that AB 1159 raises.]

Some of the more problematic language proposes the following (amongst many):

  1. Requiring attorneys who want to practice immigration law to post a bond of $100,000, filed with the State Bar.  So, after passing the bar, paying bar fees, satisfying MCLE courses, attorneys who wish to pursue this area of practice must pay even more, above and beyond their malpractice and general liability insurance.
  2. Providing written contracts to clients in English and in the client’s native language.  This would require attorneys to either limit their practice to only English or a few languages, or pass on the additional cost of hiring translation services to their clients, either of which would negatively impact the community AB 1159 is purportedly attempting to assist.
  3. Allowing clients to rescind a contract after 72 hours of signing the contract.  What happens when work has already been performed within that time frame?
  4. Returning all original client documents upon demand.  One immigration attorney raised a very valid point about situations where original documents are needed to protect victims of abuse.
  5. Inability to provide any payment for services rendered in connection with Immigration Reform Act before the act has been enacted.  Are attorneys forbidden to discuss the impact of any potential immigration reform legislation with clients prior to enactment?  What about reviewing documents in connection?
  6. Payment of additional registration fees to the State Bar for “registration, renewal, and filing fees from attorneys providing immigration reform act services for the reasonable regulatory costs of administering and enforcing this article.”  Additional fees!  Perhaps this is the primary purpose of AB 1159 – to fund a client trust account for the malfeasance of a few on the backs of only immigration attorneys.  This hardly seems an efficient way of combatting immigration fraud by bad actors!

Both AILA National and AILA’s California Chapters have each issued separate statements opposing AB 1159, laying out various reasons why the bill is cumbersome and unfairly targets immigration attorneys.

[Update August 9, 2013: Assemblywoman Lorena Gonzalez recently issued a Factsheet on AB1159, available here, which are based off of revisions that are being contemplated this week.  You can also read the latest revisions to AB 1159 available online at AILA, Doc No. 13080903]

[Update August 15, 2013: the California Legislature’s official website has posted the latest amendments to AB1159 available for viewing here.]

Why Target Immigration Attorneys?

According to the California Bar Journal’s August 2013 Issue, Bar President Patrick Kelly said that “Attorneys are already seeking to take fees and make promises, even though no legislation has passed yet.”

California Bar Vice President Luis J. Rodriguez added, “It’s out there and it’s bold, and there’s no shame about what’s being done.”

Those are fairly bold, blanket statements coming from the President and Vice President implying that immigration attorneys must all be crooks and thieves!  Yet, in the same article, André Birotte, U.S. Attorney for the Central District, contradicts that very statement, who is “concerned there won’t be enough law enforcement resources to combat an increase in non-lawyers scamming vulnerable population.” (Emphasis added.)

For immigration practitioners (whether for or non-profit), notario fraud (individuals who practice law without authorization) have been a rampant issue.  The Bar Journal article not only fails to include actual data for readers to discern if these fraud incidences mentioned by Bar Leadership are anecdotal or symptomatic, the article also suggests that AB 1159 will somehow curb abuses by notarios; abuses, according to the U.S. Attorney, appears to be much more rampant of a problem.

The Legislators Ignore AILA

AB 1159 essentially singles out immigration attorneys for stricter enforcement, higher costs of conducting business in the state, and imposes standards that are nearly impossible (if not impracticable) under the guise of curbing bad immigration attorneys.  Yet, the law fails to truly address notario fraud in the state and will likely result in a negative impact for the immigrants the law was intended to help.

In fact, sources have confirmed that AILA California Chapter Leaders have not been invited to participate in any calls or meetings, to date, regarding AB 1159, with legislators.

If the sponsors of AB 1159 were intent on curbing unscrupulous immigration attorneys, why was AILA not invited to craft AB 1159 back in February 2013 when the bill was first introduced or in July 2013 when it was amended?  Are Legislators rushing to get AB 1159 passed without meaningful input and constructive revisions from AILA?  While Rodriguez made clear, “This is not the place or time to sit back and hope things fix themselves,” AILA can proudly say it has been at the forefront of notario fraud long before DHS or the California Bar waded in.  Maybe now is a good time to include AILA?

Contact Your Legislators

It’s a slippery slope when a few legislators can successfully (and behind the scenes) attempt to pass legislation, without meaningful input from its stakeholders, in a hurried fashion targeting a select group of attorneys.  Who’s next?  Criminal attorneys?  Bankruptcy attorneys?  Litigation attorneys?  (Can you imagine the uproar?)  Where does this end?

For a list of your General Assembly Representatives, click here, or a list of California State Senators, click here.  Or, you can find out who your California representatives here.  Whether you are in Calfornia or not, I’m sure the Legislators would be interested to hear your thoughts on AB 1159.